Pillsbury Winthrop Shaw Pittman LLP

Transportation Finance Digest: Volume 1

In This Issue: - Introduction - All Hat And No Chattel: Life After Cape Town - Q&A - The Future Of Eca Financing - Deal Of The Year - An Innovative Engine Re-Securitization - Pillsbury Case…more

Aircraft Sales, Aviation Contracts, Aviation Industry, Chattel Paper, Export Credit Agency

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UK Amends TUPE Regulations

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) has been in the spotlight as part of the UK Government’s Employment Law Review. TUPE implements the EU Acquired Rights Directive (“ARD”) in the…more

Employee Rights, TUPE, UK

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Expansion of Antitrust Enforcement Continues with Extradition

On April 4, 2014, the Department of Justice’s Antitrust Division announced its first successful extradition of a foreign national to the United States on antitrust charges. Romano Pisciotti, a citizen of Italy, has been under…more

Antitrust Investigations, Cartels, DOJ, Extradition, Foreign Nationals

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The Announcement of Criminal Charges against Lumber Liquidators Underscores the Need for Lacey Act Compliance

On Wednesday, April 29, 2015, Lumber Liquidators announced in its most recent 10Q that the United States Department of Justice plans to pursue criminal charges surrounding allegations the company illegally imported wood in…more

Criminal Prosecution, DOJ, Enforcement Actions, Illegal Imports, Imports

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Admit It! SEC May Seek Admissions of Wrongdoing in Settlements

The U.S. Securities and Exchange Commission (“SEC”) is poised to modify its “no-admit, no-deny” policy to seek more admissions of wrongdoing from defendants as a condition of settlement in enforcement cases. The change comes on…more

Criminal Sanctions, D&O Insurance, Indemnification, SEC, Settlement

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Transportation Finance Digest: Volume 1

In This Issue: - Introduction - All Hat And No Chattel: Life After Cape Town - Q&A - The Future Of Eca Financing - Deal Of The Year - An Innovative Engine Re-Securitization - Pillsbury Case…more

Aircraft Sales, Aviation Contracts, Aviation Industry, Chattel Paper, Export Credit Agency

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“Ban the Box” Legislation Expands Across the Country

There is a growing national movement to “Ban the Box” – i.e., to prohibit questions about a job applicant’s criminal history on employment applications. Currently, “Ban the Box” laws are primarily targeted at public employers;…more

Ban the Box, Criminal Background Checks, Employee Rights, Job Applicants

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Companies Should Consider Cuban Trademark Protection – Now

In December 2014, President Obama made an unexpected announcement signaling a “new course” for Cuba after more than fifty years of comprehensive U.S. sanctions. The changes to U.S. sanctions and export policy under the Cuban…more

Cuba, EAR, Embargo, Popular, Trade Policy

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Contracting with foreign entities and electronic signature under English Law: Getting the execution right

You've managed to agree the deal; all that's left is to sign the documents. That's the easy bit, correct? So you might think, but it is important to be careful not to slip up at this final stage, particularly when contracting…more

Contract Formation, E-Signatures, Foreign Entities, Signatures

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Admit It! SEC May Seek Admissions of Wrongdoing in Settlements

The U.S. Securities and Exchange Commission (“SEC”) is poised to modify its “no-admit, no-deny” policy to seek more admissions of wrongdoing from defendants as a condition of settlement in enforcement cases. The change comes on…more

Criminal Sanctions, D&O Insurance, Indemnification, SEC, Settlement

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How Businesses Can Reduce Cyber Risk: Pre and Post Incident: Businesses Need to Take a More Proactive Approach to Reducing What Is a Fast-Increasing and High-Profile Area of Risk

As the volume of sensitive data that businesses store ever increases, the use of mobile devices continues to grow and cyber villains become ever more sophisticated, it is perhaps of no surprise that we hear about new instances…more

Cyber Threats, Cybersecurity, Data Breach, Mobile Devices, Risk Assessment

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FTC Expands Focus on Tracking and Use of Consumers’ Location Data

Over the past few years, the Federal Trade Commission (“FTC”) has provided guidance regarding mobile platforms and app providers’ practices of collecting data about consumers’ locations through their mobile devices, with a focus…more

FTC, Geolocation, Mobile Apps

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SEC Proposes Pay-for-Performance Disclosure Rules

On April 29, 2015, the Securities and Exchange Commission (SEC) proposed a new rule under the Dodd-Frank Wall Street Reform and Consumer Protection Act that would require public companies to disclose the relationship between the…more

Disclosure Requirements, Executive Compensation, Pay-for-Performance, Proxy Statements, Publicly-Traded Companies

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American Taxpayer Relief Act of 2012

On New Year’s Day 2013, to avoid the so-called “fiscal cliff,” Congress passed the American Taxpayer Relief Act of 2012 (“2012 Act”). The 2012 Act raises taxes on some taxpayers while retaining most of the provisions enacted by…more

American Taxpayer Relief Act, Bush-Era Tax Cuts, Debt Ceiling, Estate Tax, Fiscal Cliff

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The U.S. Supreme Court Upholds EPA’s Cross-State Air Pollution Rule in EPA v. EME Homer City Generation, L.P., Paving the Way to Further Use of Cap-and-Trade Programs to Control Emissions of SO2 and NOx from Electric Power Plants.

On April 24, the Supreme Court issued a 6-2 decision in EPA v. EME Homer City Generation, L.P., No. 12-1182, 572 U. S. ____, 2014 WL 1672044 (2014), upholding EPA’s latest version of a regional cap-and-trade program under the…more

Cap-and-Trade, Carbon Emissions, Clean Air Act, EPA v EME Homer City, NAAQS

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Can IT Outsourcing Learn From Facilities Management Outsourcing?

2013 began with a flurry of articles about companies insourcing work or rethinking their sourcing strategies. The reasons for this vary by company, but often include a perception that outsourcing has not delivered the cost…more

Financial Management Outsourcing, Information Technology Outsourcing, Insourcing, Outsourcing, Technology

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Delaware Offers New Guidance on Enforcing Fiduciary Duties Owed to Insolvent Corporations

On May 4, 2015, Vice Chancellor Travis Laster of the Delaware Court of Chancery issued a decision in Quadrant Structured Products Co., Ltd. v. Vertin, analyzing creditors’ standing to bring derivative claims against directors…more

Board of Directors, Creditors, Derivative Suit, Directors, Fiduciary Duty

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Lehman: New Limitations on Plan Payment of Individual Creditors’ Committee Members’ Professional Fees

In the recent case of Davis v. Elliot Mgmt. Corp. (In re Lehman Bros. Holdings Inc.), 2014 U.S. Dist. LEXIS 48102 (S.D.N.Y. Mar. 31, 2014), the District Court for the Southern District of New York issued a decision barring…more

Attorney's Fees, Bankruptcy Code, BAPCPA, Commercial Bankruptcy, Creditors

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Beware of Mixing IT Assets and IT Managed Services

In the early days of outsourcing IT as a managed service, it was not at all unusual for a managed services price to be all inclusive of assets, services and facilities. That bundle of services and assets usually came with a…more

Business Development, Information Technology Outsourcing

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Recent Trends in Commercial Aircraft Finance

Since the financial crisis, the aviation finance market has been through much change with the initial heavy reliance on export credit financing from US Export-Import Bank (Ex Im Bank) and the other export credit agencies (ECAs),…more

Aircraft, Bonds, Capital Markets, China, Commercial Loans

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Court of Appeal Holds Transfer Tax Applies to Legal Entity Changes in Ownership

In 926 North Ardmore Avenue, LLC v. County of Los Angeles, the 2nd District Court of Appeal held that Proposition 13 changes in ownership prompted by transfers of legal entity interests should also be characterized as “realty…more

Appeals, Change in Ownership, Legal Entities, Limited Liability Companies, Proposition 13

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Unusual Bipartisanship Makes New Free Trade Agreements More Likely

Major new free trade agreements are on the horizon. For the past several years, the Obama Administration has been negotiating two new major free trade agreements: the Trans-Pacific Partnership (TPP) and the Trans-Atlantic Trade…more

Contract Negotiations, Free Trade Agreement, Legislative Agendas, Obama Administration, Trans-Pacific Partnership

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GAO Holds That Agency Improperly Credited Offeror With Past Performance of Affiliates

In IAP World Services, Inc.; EMCOR Government Services, B-407917.2 et al. (July 10, 2013), involving a protest challenging an award by the U.S. Department of the Navy (the “Navy”) for base operating support services, the…more

Affiliates, GAO, Improper Benefit, Joint Venture, U.S. Navy

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Perspectives - Fall 2012 Volume 3, Edition 2: An Executive Compensation, Benefits & Human Resources Law Update

In this Issue: - Don’t “Moench”ion It: Supreme Court Rejects Presumption of Prudence for ESOP Fiduciaries - Avoiding Claims of Excessive Fund Fees - Risk of ERISA Class Actions Can Be Reduced by Use of Plan…more

Arbitration Agreements, Class Action, Class Action Arbitration Waivers, ERISA, ESOP

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Transportation Finance Digest: Volume 1

In This Issue: - Introduction - All Hat And No Chattel: Life After Cape Town - Q&A - The Future Of Eca Financing - Deal Of The Year - An Innovative Engine Re-Securitization - Pillsbury Case…more

Aircraft Sales, Aviation Contracts, Aviation Industry, Chattel Paper, Export Credit Agency

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Transportation Finance Digest: Volume 1

In This Issue: - Introduction - All Hat And No Chattel: Life After Cape Town - Q&A - The Future Of Eca Financing - Deal Of The Year - An Innovative Engine Re-Securitization - Pillsbury Case…more

Aircraft Sales, Aviation Contracts, Aviation Industry, Chattel Paper, Export Credit Agency

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Raging Bull Heiress Knocks Out MGM’s Laches Defense

In Petrella v. Metro-Goldwyn-Mayer, Inc., Supreme Court holds that laches cannot bar claims for damages for copyright infringement brought during the 3-year limitations period. On May 19, 2014, in a case concerning the…more

Affirmative Defenses, Copyright, Copyright Infringement, Laches, MGM

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FAA Proposes Rules For Commercial Small Unmanned Aircraft Systems (sUAS) Operations (14 C.F.R. Part 107); White House Issues UAS Privacy Memorandum

On February 15, 2015, the U.S. Federal Aviation Administration (FAA) proposed rules for the commercial operation of small unmanned aircraft systems (sUAS) weighing less than 55 pounds—a long-awaited step towards integrating…more

Aerospace, Aviation Industry, Drones, FAA, Proposed Regulation

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Doing Business in the U.S.

In This Issue: - Preface - Chapter 1 Choice Of A Business Entity - Chapter 2 Introduction To Federal Securities Laws - Chapter 3 From Let’S Go Shopping To Closing: U.S. M&A Process - Chapter 4 Employment…more

Anti-Bribery, Anti-Money Laundering, Antidumping Duties, Commercial Real Estate Market, Corporate Governance

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Proposed U.S. Department of Transportation Passenger Protection Rules Offer Opportunity for Travel Industry Comments

On May 21, 2014, the U.S. Department of Transportation (DOT) proposed new passenger protection rules for the airline and travel industries, which would add to DOT’s extensive “Enhancing Airline Passenger Protections” regulations…more

Airlines, Aviation Industry, Department of Transportation, Safety Precautions

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Act Now to Prevent Loss of Patent Rights in March 16th Change to “First-Inventor-to-File” System

One of the most significant changes of the 2011 Leahy-Smith America Invents Act (“AIA”) takes effect on March 16, 2013, when the U.S. transitions from a “First-to-Invent” to a “First-Inventor-to-File” patent system, effectively…more

America Invents Act, First-to-File, Patent Reform, Patents, USPTO

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Stop Calling Me: Can Consumers Waive The Right to Revoke Consent under the TCPA

The Telephone Consumer Protection Act permits companies to make telephone solicitations using autodialers and pre-recorded messages once they have a consumer’s consent to do so. Many authorities have suggested that such consent…more

Prior Express Consent, Revocation, Robocalling, TCPA, Waivers

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Don’t Wait Until It’s Too Late: Top 10 Recommendations for Negotiating Your Cyber Insurance Policy

As more and more companies of all sizes ranging across a wide spectrum of industries have been exposed to network and data security breaches in recent years, the market for insurance products dedicated to cover cyber risks has…more

Contract Negotiations, Cyber Insurance, Indemnification Clauses, Policy Exclusions, Policy Limits

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Guidance for Companies Developing and Implementing Antitrust Compliance Programs

Recent policy statements by the U.S. Department of Justice’s Antitrust Division (“DOJ”) highlight the factors companies should consider when developing and implementing antitrust compliance programs. Effective antitrust…more

Antitrust Provisions, Best Management Practices, Chief Compliance Officers, DOJ

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Don’t Shoot the Messenger: The Expanding Scope of the John Doe Summons

The John Doe summons is an information-gathering tool that has been available to the IRS for many years, traditionally used to seek information about unknown persons suspected of tax evasion from banks, investment advisors or…more

DHL, FedEx, Financial Institutions, Government Investigations, IRS

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Nevada’s AG Reminds Retailers, Wholesalers and Suppliers: Comply with Alcohol Beverage Laws

On January 30, 2014 the State of Nevada Attorney General’s Office issued an open letter to all retailers, wholesalers and suppliers of alcohol beverages in Nevada reminding them of their legal obligation to comply with the…more

Retailers, Suppliers, Wholesale, Wine & Alcohol

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Transportation Finance Digest: Volume 1

In This Issue: - Introduction - All Hat And No Chattel: Life After Cape Town - Q&A - The Future Of Eca Financing - Deal Of The Year - An Innovative Engine Re-Securitization - Pillsbury Case…more

Aircraft Sales, Aviation Contracts, Aviation Industry, Chattel Paper, Export Credit Agency

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Dodd-Frank Protocol Carries Burdens and Benefits for Pension Plans

The Commodity Futures Trading Commission has issued new “know your customer” and external business conduct rules to give effect to certain provisions of Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act…more

CFTC, Derivatives, Dodd-Frank, Employee Benefits, ERISA

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Halliburton: Supreme Court Changes Little About Securities Fraud Class Actions

In a widely anticipated decision, the Supreme Court upheld a twenty-six-year-old precedent that plaintiffs in securities fraud class actions may satisfy the reliance element by showing that they traded on an “efficient market”…more

Basic v Levinson, Class Certification, Fraud, Fraud-on-the-Market, Halliburton

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Circuit Split in Enforceability of Arbitration Clauses in Bankruptcy Left Unresolved

In a recent summary opinion, the Supreme Court denied certiorari review of a decision, Continental Insurance Co. v. Thorpe Insulation Co. (In re Thorpe Insulation Co.), 671 F.3d 1011 (9th Cir. 2012), where the Ninth Circuit had…more

Arbitration Agreements, Continental Insurance v Thorpe Insulation, In re National Gypsum Co, SCOTUS, Split of Authority

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Ancillary Joint Ventures Involving Taxable and Tax-Exempt Health Care Entities: Addressing the Chilling Effect of IRS Inaction

Tax-exempt health care systems facing growing operating costs and falling revenues frequently explore creation of ancillary joint ventures (AJVs) as vehicles to raise capital, share risk, expand coverage, and provide care more…more

Health Care Providers, Healthcare, Hospital Mergers, Hospitals, IRS

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Appellate Division Review - Business Judgment Rule, Privilege, Child Support, Animal Rights

The more things change, the more they remain the same. As we enter a new year, New York’s Appellate Division faces the same and greater challenges: increasing caseloads, staff shortages, judicial vacancies, and legal disputes…more

Animal Rights, Attorney-Client Privilege, Bank of America, Business Judgment Rule, Bylaws

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Texas Renews Efforts to Require Cash Redemption of Certain Stored Value Cards

Texas renews effort to require that certain stored value cards be redeemable for cash if the balance on the card is less than $2.50. In early March, Texas House Bill 2391 was introduced. It would require a cash refund to…more

Gift-Cards, Pending Legislation, Refunds

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USGS’s Increase of Texas’s Earthquake Risk Level: Commercial Real Estate and Insurance Implications

Before 2008, the greater Dallas Fort Worth area, known as the Fort Worth Basin, was almost entirely void of seismic activity. Between 1950 and 2008, the only seismic activity on record was an insignificant event that experts…more

Commercial General Liability Policies, Commercial Property Owners, Earthquake Insurance, Earthquakes, Secured Lenders

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Shamrock Shake: St. Patrick’s Day Earthquake in Los Angeles Is a Reminder to Check Your Property Insurance Policy

Los Angeles residents didn’t need to go to McDonald’s for their “Shamrock Shake” on St. Patrick’s Day 2014. At 6:25 a.m., a 4.4-magnitude earthquake shook L.A. County out of bed. Monday’s shake serves as a reminder to be…more

Earthquakes, Property Damage, Property Insurance

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Court of Appeal Holds Transfer Tax Applies to Legal Entity Changes in Ownership

In 926 North Ardmore Avenue, LLC v. County of Los Angeles, the 2nd District Court of Appeal held that Proposition 13 changes in ownership prompted by transfers of legal entity interests should also be characterized as “realty…more

Appeals, Change in Ownership, Legal Entities, Limited Liability Companies, Proposition 13

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Much Ado About Doing Nothing: DOJ’s Latest Memorandum Cracks Open Door to Marijuana Development on Tribal Lands

In December 2014, the Department of Justice (DOJ) released a policy statement regarding enforcement of marijuana laws in Indian Country. While some media have reported the Department’s statement as carte blanche for tribes to…more

DOJ, Marijuana, Marijuana Cultivation, Policy Statement, Tribal Lands

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As the New gTLDs Near Launch, What's Happening and How Can You Protect Yourself?

While much of the world is finally getting a handle on the .com, .net and .org domains, we are on the brink of an explosion of hundreds of new generic top- level domains (“gTLDs”). In fact, if things go as planned, we will soon…more

gTLD, Internet, Trademarks, Websites

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The Fish and Wildlife Service Lists the Lesser Prairie-Chicken as a Threatened Species Under the Endangered Species Act

On March 21, 2014, the United States Fish and Wildlife Service (FWS) promulgated a final rule which lists the Lesser Prairie-Chicken (LPC) as a “threatened” species under the Endangered Species Act (ESA). Under the ESA, a…more

CCAA, ESA Listings, Fish and Wildlife Service, Oil & Gas

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California Supreme Court Creates Two-Part CEQA Exemption Test in Berkeley Hillside

Developers and agencies seeking to expedite project reviews under the California Environmental Quality Act (CEQA) often chafe under its unique “fair argument” standard of judicial review, which sets a very low bar for challenges…more

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Extort Me Not: Supreme Court Expands Protections for Permit Applicants Under the Takings Clause

The high court’s decision in Koontz v. St. John’s River Water Management District extends the landmark decisions in Nollan and Dolan, which set standards on when an agency can condition a land use permit on the relinquishment of…more

Dolan v City of Tigard, Fifth Amendment, Koontz v St John's River Water Management, Land Developers, Nexus

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Don’t Shoot the Messenger: The Expanding Scope of the John Doe Summons

The John Doe summons is an information-gathering tool that has been available to the IRS for many years, traditionally used to seek information about unknown persons suspected of tax evasion from banks, investment advisors or…more

DHL, FedEx, Financial Institutions, Government Investigations, IRS

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Five Things You Should Know About the United States Supreme Court decision in Maryland v. Wynne

On May 18, 2015, the United States Supreme Court ruled in a 5-4 decision that Maryland’s personal income tax scheme violates the Commerce Clause of the United States Constitution by denying residents a full credit for personal…more

Comptroller of the Treasury v Wynne, Dormant Commerce Clause, Income Taxes, Non-Resident Income Taxes, SCOTUS

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GSA May Abolish the Price Reduction Clause

On March 4, 2015, the U.S. General Services Administration (GSA) issued a proposed rule that could abolish the long-standing price reduction clause (PRC) from the GSA Schedule program. GSA is proposing to eliminate the clause…more

Federal Contractors, GSA, Price Reduction Clause

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Reversing Course, EPA Tightens Its RCRA Hazardous Waste Recycling Rules

After years of relative easing in its interpretation of the Resource Conservation and Recovery Act rules that govern industrial recycling, the Environmental Protection Agency is now taking a harder line. A recently issued…more

EPA, Final Rules, Hazardous Waste, Industrial Products, Manufacturers

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U.S. Government Begins First Ever Bitcoin Auction

As reported in our earlier post, the U.S. Government has begun its first ever auction of Bitcoins. The Bitcoins to be auctioned were seized in connection with the shutdown of the Silk Road - the "dark net" site that served as a…more

Auction, Bitcoins, Silk Road, US Marshalls Service

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Meeting New OTC Swap Reconciliation Rules May Require Better Technology and Processes

Although reconciliation of the key terms has been a best practice for over-the-counter derivative trades for some time (particularly with collateralised trades), the scale of the reconciliation exercise imposed by forthcoming…more

CFTC, Data Protection, Derivatives, Due Diligence, ESMA

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Four Things You Should Know About New York's Recent Advisory Opinion on the Taxation of SaaS

On May 15, 2015, the New York Department of Taxation and Finance determined in Advisory Opinion TSB-A-15(2)S that the sale of certain cloud computing services were not subject to New York State sales and use tax. The Advisory…more

Advisory Opinions, Cloud Computing, Cloud-Based Services, SAAS, Sales & Use Tax

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Transportation Finance Digest: Volume 1

In This Issue: - Introduction - All Hat And No Chattel: Life After Cape Town - Q&A - The Future Of Eca Financing - Deal Of The Year - An Innovative Engine Re-Securitization - Pillsbury Case…more

Aircraft Sales, Aviation Contracts, Aviation Industry, Chattel Paper, Export Credit Agency

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California’s New LLC Law: Next Steps for California LLCs

On January 1, 2014, California’s Beverly-Killea Limited Liability Company Act (Old Act) was superseded by the California Revised Uniform Limited Liability Company Act (New Act). The New Act includes a number of substantive…more

Compliance, Corporate Governance, LLC, Operating Agreements, RULLCA

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Tobacco Advertising Q&A

While it has been decades since Congress banned cigarette ads from the airwaves, broadcasters continue to ask for advice on whether they may air certain types of tobacco-related advertisements. In fact, questions in this area of…more

Advertising, DOJ, FCC

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New Nevada Employment Law Developments Affect Social Media, Overtime

There have been several notable and recent developments in Nevada employment law both through enacted legislation and advisory opinions issued by the Nevada Labor Commissioner. Specifically, the legislature has passed a law…more

Employee Rights, New Legislation, Social Media Policy, Unpaid Overtime

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Catching Up with Winding Down: The Status of California Redevelopment Successor Agencies

Successor agencies to California’s dissolved Redevelopment Agencies (“RDAs”) continue to wind down the operations of the former RDAs under the supervision of oversight boards pursuant to Assembly Bill X1 26 (“AB 26”) as modified…more

Dissolution, Financial Cleanup Provisions, Funding, Payment Schedules, RDAs

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Perspectives - Fall 2012 Volume 3, Edition 2: An Executive Compensation, Benefits & Human Resources Law Update

In this Issue: - Don’t “Moench”ion It: Supreme Court Rejects Presumption of Prudence for ESOP Fiduciaries - Avoiding Claims of Excessive Fund Fees - Risk of ERISA Class Actions Can Be Reduced by Use of Plan…more

Arbitration Agreements, Class Action, Class Action Arbitration Waivers, ERISA, ESOP

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California Supreme Court: Gentry is Gone. PAGA Lives On.

Compelled by U.S. Supreme Court precedent advancing arbitration as a method of dispute resolution, the California Supreme Court in Iskanian v. CLS Transportation Los Angeles, LLC (No. S20432, June 23, 2014) held that its…more

Arbitration, Class Action, Class Action Arbitration Waivers, CLS Transportation, Employer Liability Issues

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Doing Business in the United States

In This Book: - Choice Of A Business Entity - Introduction To Federal Securities Laws - From Let’s Go Shopping To Closing: M&A Process In The United States - Employment Considerations - Equity…more

Business Formation, Choice of Entity, Commercial Real Estate Market, Corporate Taxes, Dispute Resolution

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Redskins Ruling is Consistent with TTAB Precedent

In Blackhorse v. Pro-Football Inc., the U.S. Patent and Trademark Office once again canceled various registrations for trademarks used by the Washington Redskins football team as being disparaging to Native Americans. While this…more

Blackhorse v Pro-Football, Disparagement, Football, Lanham Act, Native American Issues

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A Boost for Business: Time to Reaffirm or Secure Terrorism Insurance

On January 12, 2015, President Obama signed into law H.R. 26, the Terrorism Risk Insurance Program Reauthorization Act of 2015 (TRIPRA of 2015), providing a federal backstop for insurance against risks of terrorism. TRIPRA…more

Terrorism Insurance, TRIA

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Free Speech Protection for Facebook "Likes" by Public Employees

Last week, in Bland v. Roberts, the U.S. Court of Appeals for the Fourth Circuit handed a constitutional victory to Facebook and two plaintiffs who lost their jobs after displaying online support for the incumbent’s opponent in…more

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New York Court of Appeals Gives Global Banks Big Win on “Separate Entity” Issue

In Motorola Credit Corp. v. Standard Chartered Bank, 2014 N.Y. Slip Op. 07199, 2014 WL 5368774 (Oct. 23, 2014) (“Motorola”), the highest New York state court ended five years of uncertainty and for the first time expressly…more

Banks, Foreign Banks, Judgment Debtors, Separate Entity Rule

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Nevada’s AG Reminds Retailers, Wholesalers and Suppliers: Comply with Alcohol Beverage Laws

On January 30, 2014 the State of Nevada Attorney General’s Office issued an open letter to all retailers, wholesalers and suppliers of alcohol beverages in Nevada reminding them of their legal obligation to comply with the…more

Retailers, Suppliers, Wholesale, Wine & Alcohol

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Proxy Season Brings a Third Wave of “Gotcha” Shareholder Litigation

Proxy season is upon us and the plaintiffs’ bar is demonstrating its resourcefulness by bringing a third wave of shareholder litigation. This new wave, which has not crested yet, consists of a return to derivative shareholder…more

Annual Meeting, Board of Directors, Derivative Suit, Executive Compensation, Exit Strategies

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Potential Pitfalls in Data Licensing and Big Data Analytics

The trend in Big Data analytics among companies shows no sign in abating, with companies covetously collecting vast amounts of data with the hopes of harvesting market differentiators. A study by open-source research firm…more

Analytics, Big Data, Data Analytics, Popular, Risk Assessment

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Addressing Cyber Attacks and Data Breaches in Supplier Contracts - Part 2: How are Limits of Liability Evolving, with Respect to the Issue of Data Breaches?

Ten years ago, most "buyers/customers" expected their suppliers to absorb unlimited contractual liability if the supplier was responsible for a breach affecting the customer's data. Today, while customers may continue to insist…more

Commercial Insurance Policies, Contract Negotiations, Cyber Attacks, Data Breach, Liability

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Riley and the Third-party Doctrine

On June 25, 2014, the U.S. Supreme Court issued one groundbreaking opinion in two cases regarding cellphone searches incident to arrest. In a unanimous opinion, the court held that under the Fourth Amendment, police must obtain …more

Cell Phones, Data Collection, Fourth Amendment, NSA, Personally Identifiable Information

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Trends in Single-Family Housing

Rising home values in many areas of the country and improved economic data have buoyed hopes that the recession may be behind us, but no one expects an immediate return of either pre-2007 home value appreciation or the loose…more

Foreclosure, Investors, Mortgage Loan Servicing Standards, Mortgages, REO Portfolios

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House Small Business Bill Could Have a Large Impact on Small Businesses

On March 25, 2015, the House Small Business Committee approved The Small Contractors Improve Competition Act of 2015 (H.R.1481) (“SCICA”), which would amend the Small Business Act and the National Defense Authorization Act for…more

Federal Contractors, Pending Legislation, SBA, Service Contracts, Small Business

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Ramifications of the Supreme Court’s McCutcheon Campaign Finance Ruling

The U.S. Supreme Court’s decision today in an important campaign finance case frees individual political donors to contribute to an unlimited number of federal campaigns and committees, as long as each contribution is within…more

Aggregation Rules, Campaign Contributions, FEC, McCutcheon v. FEC, SCOTUS

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How to Fix the Amendment Fallacy

The Patent Trial and Appeal Board has made it hard for patent owners to amend their claims. Patrick Doody outlines the problems this causes and how to fix them. Since being established under 2011’s America Invents Act…more

America Invents Act, Patent Infringement, Patent Litigation, Patent Reform, Patents

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Don't get caught with your Transition Services Down (part 1 of 2)

There is no shortage of commentary on why mergers and acquisitions fail or do not live up to their projected potential. The percentage of failed or underachieving deals is astounding with some placing the failure rate over…more

Best Practices, Strategic Planning

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Recent Changes to New York Estate and Income Tax

On March 31, 2014, the New York State legislature passed and Gov. Andrew Cuomo signed into law the New York State 2014-2015 Budget Bill (the “New Law”), which contains a number of revisions to the New York State estate tax law…more

Estate Tax, Income Taxes, State Taxes, Tax Reform

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Deadline Looming for BE-10 Filing

- Mandatory reporting required by the Bureau of Economic Analysis on Form BE-10 – 2014 Benchmark Survey of U.S. Direct Investment Abroad - Investment managers, general partners, hedge funds and private equity funds are…more

BEA, Filing Deadlines, Hedge Funds, Investment Adviser, Investment Management

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HSR Thresholds Will Increase Slightly for Transactions in 2015

On February 20, 2015, revised thresholds for the Hart-Scott-Rodino Act (“HSR”) will take effect. The thresholds determine whether parties involved in proposed mergers, consolidations, or other acquisitions of voting securities,…more

Filing Fees, FTC, Hart-Scott-Rodino Act, Jurisdiction, Premerger Notifications

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Antitrust “State Action” Exemption: North Carolina State Board of Dental Examiners v. Federal Trade Commission

On February 25, 2015, the U.S. Supreme Court issued its decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission, holding that a regulatory board made up of market participants is exempt from…more

Antitrust Litigation, FTC, NC Board of Dental Examiners v FTC, SCOTUS, State Action Doctrine

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You've been fired!

It isn't often that a supplier "fires" its customer, but it's not unknown. I have worked with two clients recently whose suppliers have given notice of termination without cause. How can you avoid or, if it does happen,…more

Sourcing Agreements, Suppliers, Termination

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Supreme Court Ruling in Bellingham Offers Comfort but Little Clarity

A unanimous Supreme Court, in Executive Benefits Ins. Agency, Inc. v. Arkinson (In re Bellingham Ins. Agency, Inc.), 573 U.S. ___ (2014), confirmed a bankruptcy court’s power to submit proposed findings of fact and conclusions…more

Article III, Chapter 7, Commercial Bankruptcy, Executive Benefits Insurance Agency, Executive Benefits Insurance Agency v. Arkison

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Supreme Court to Securities Issuers: Beware What You Omit When Stating Your Opinions

Deciding this Term’s big securities case, a unanimous Supreme Court held on March 24 that a statement of opinion does not become actionable under the “untrue statement of material fact” clause of section 11 of the Securities…more

Material Misstatements, Omnicare, Omnicare v Laborers District Council, Public Offerings, Registration Statement

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Ramifications of the Supreme Court’s McCutcheon Campaign Finance Ruling

The U.S. Supreme Court’s decision today in an important campaign finance case frees individual political donors to contribute to an unlimited number of federal campaigns and committees, as long as each contribution is within…more

Aggregation Rules, Campaign Contributions, FEC, McCutcheon v. FEC, SCOTUS

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Managing Ageing Fleets

Manufacturers design modern aircraft with a prescribed lifespan, or ‘design life’ of 25 years. The lifespan includes a specified number of flight hours and flight cycles, which allows the aircraft OEM, owner and operator to…more

Aircraft, Manufacturers, Operation & Maintenance

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Congress Raises the Stakes for Theft of Trade Secrets with Passage of Two New Laws

The old adage that crime does not pay rings particularly true in the aftermath of two pieces of recent legislation aimed at raising the penalties for trade secret theft: the Theft of Trade Secrets Clarification Act and the…more

Aleynikov, Economic Espionage Act, Misappropriation, Penalties, Theft of Trade Secrets Clarification Act

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Five Facts about the Proposed UK Diverted Profits Tax

The UK government has proposed its "diverted profits tax" in order "to counteract contrived arrangements used by large groups (typically multinational enterprises) that result in the erosion of the UK tax base." There follows a…more

Diverted Profits Tax, Multinationals, UK

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Global App Enforcement Sweep - Lessons For Developers

A recent survey of over 1,200 of the top mobile apps in 19 countries by the Global Privacy Enforcement Network ("GPEN") has found that 85% of the apps reviewed were non-compliant, failing to provide even the most basic privacy…more

Data Protection, Enforcement, Enforcement Actions, GPEN, Mobile Apps

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Strict Controls Proposed on the Export of Cybersecurity Items

On May 20, 2015, the Commerce Department Bureau of Industry and Security (BIS) proposed to establish controls on the export of cybersecurity items. These items would be classified under new Export Control Classification Numbers…more

BIS, Cybersecurity, ECCNs, Encryption, Export Administration Regulations

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Federal Circuit’s Split Decision on Software Patents in CLS Bank Satisfied No One and Confused All

Section 101 of the patent statute lists the categories of subject matter eligible for patent protection as including “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement…more

CLS Bank, CLS Bank v Alice Corp, Patent-Eligible Subject Matter, Patents, SCOTUS

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Framework for Nuclear Agreement with Iran Announced—But Still a Long Way to Go

On April 2, 2015 representatives of the United States, Britain, France, Germany, China and Russia (collectively, the “P5+1” countries) announced that they had agreed with the Islamic Republic of Iran on the Parameters for a…more

Framework Agreement, Iran, Nuclear Power, P5+1 Nations, Sanctions

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New York Creates Rocket-Docket for Commercial Disputes—But Accelerated Adjudication Comes With Trade-Offs

As of June 2, the Commercial Division of the New York Supreme Court will allow for the accelerated adjudication of commercial disputes. Rule 9 of Section 202.70(g) of the Uniform Rules for the Supreme and County Courts takes…more

Contract Disputes, Discovery, Expedited Discovery

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California AG Issues New Privacy Policy and “Do Not Track” Compliance Guidelines, Announces Proactive Enforcement

The California Attorney General recently released a series of guidelines to assist with compliance with the California Online Privacy Protection Act of 2003 (CalOPPA), which was amended to require new data collection and Do Not…more

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U.S. Government Shutdown: Will Performance of Private Contracts Be Excused?

With Congress unable to reach an agreement on a continuing resolution, the federal government shut down all “non-essential” services on October 1, 2013. The shutdown will remain in effect until Congress passes appropriations…more

Breach of Contract, Force Majeure Clause, Government Shutdown, Specific Performance

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FTC Calls for Action on Big Data

Following an 18-month investigation into the practices and operations of data brokers, the Federal Trade Commission has issued a voluminous report calling for legislation to regulate the industry in the interests of consumer…more

Big Data, Data Brokers, Data Collection, Data Protection, Disclosure

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FCC Enforcement Monitor

Headlines: - Sponsorship Identification Violation Yields $115,000 Civil Penalty - $13,000 Increase in Fine Upheld for Deliberate and Continued Operation at Unauthorized Location - FCC Reduces $14,000…more

Administrative Fines, Consent Decrees, Enforcement Actions, FCC, Licensing Rules

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Raging Bull Heiress Knocks Out MGM’s Laches Defense

In Petrella v. Metro-Goldwyn-Mayer, Inc., Supreme Court holds that laches cannot bar claims for damages for copyright infringement brought during the 3-year limitations period. On May 19, 2014, in a case concerning the…more

Affirmative Defenses, Copyright, Copyright Infringement, Laches, MGM

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Aurora Energy Decision Deems Discharges Prohibited, Leaves Open Question of Permit Shield Applicability

On September 3, 2014, the United States Court of Appeals for the Ninth Circuit issued its opinion in Alaska Community Action on Toxics v. Aurora Energy Services, LLC, holding that the Clean Water Act General Permit for…more

Appeals, Clean Water Act, Coal, Coal Industry, EPA

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Trends in Single-Family Housing

Rising home values in many areas of the country and improved economic data have buoyed hopes that the recession may be behind us, but no one expects an immediate return of either pre-2007 home value appreciation or the loose…more

Foreclosure, Investors, Mortgage Loan Servicing Standards, Mortgages, REO Portfolios

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Superstorm Sandy and Con Edison’s Power Shutdown: Lessons from Johnson Gallagher

In the wake of Superstorm Sandy, property insurers have repeatedly denied coverage for business owners in lower Manhattan – arguing that ConEd intentionally cut off power to its networks and that flooding damaged ConEd’s…more

Hurricane Sandy, Property Damage, Property Insurance, Utilities Sector

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Recent Changes to New York Estate and Income Tax

On March 31, 2014, the New York State legislature passed and Gov. Andrew Cuomo signed into law the New York State 2014-2015 Budget Bill (the “New Law”), which contains a number of revisions to the New York State estate tax law…more

Estate Tax, Income Taxes, State Taxes, Tax Reform

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Supreme Court to Securities Issuers: Beware What You Omit When Stating Your Opinions

Deciding this Term’s big securities case, a unanimous Supreme Court held on March 24 that a statement of opinion does not become actionable under the “untrue statement of material fact” clause of section 11 of the Securities…more

Material Misstatements, Omnicare, Omnicare v Laborers District Council, Public Offerings, Registration Statement

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Doing Business in the United States

In This Book: - Choice Of A Business Entity - Introduction To Federal Securities Laws - From Let’s Go Shopping To Closing: M&A Process In The United States - Employment Considerations - Equity…more

Business Formation, Choice of Entity, Commercial Real Estate Market, Corporate Taxes, Dispute Resolution

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Maryland Expands Recordation and Transfer Tax Exemption to Include LLC Transactions

Effective July 1, 2013, Maryland’s recordation and transfer tax exemption for transfers of real property between related entities will be available to limited liability companies. The exemption, previously applicable only to…more

LLC, Recordation, Tax Exemptions, Transfer Taxes

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Bitcoin Game Changer?

Former Goldman Sachs, Morgan Stanley, BNP Paribas and Societe Generale bankers have announced a new futures and options derivatives-trading platform for bitcoin. The derivatives, tied to the price of bitcoin, will enable…more

Banks, Bitcoin, BNP Paribas, Derivatives, Digital Currency

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Oil and Water: Proposed Redefinition of Waters of the U.S. Has Significant Implications for Domestic Operations

The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (ACOE) have announced a new Nov. 14, 2014, deadline to submit comments to its much-debated redefinition of the term, “Waters of the United States,”…more

Environmental Policies, EPA, Jurisdiction, US Army Corps of Engineers, Water

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Raging Bull Heiress Knocks Out MGM’s Laches Defense

In Petrella v. Metro-Goldwyn-Mayer, Inc., Supreme Court holds that laches cannot bar claims for damages for copyright infringement brought during the 3-year limitations period. On May 19, 2014, in a case concerning the…more

Affirmative Defenses, Copyright, Copyright Infringement, Laches, MGM

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DHS Breaks New Ground With Issuance of SAFETY Act Certifications for Advanced Cybersecurity Defense Systems

FireEye’s MVX and DTI Technologies become the first cybersecurity products to earn certification as “Qualified Anti-Terrorism Technologies.” The Department of Homeland Security (DHS) crossed an important barrier in late…more

Certifications, Cyber Safety Act, Cyber Threats, Cybersecurity, DHS

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A Boost for Business: Time to Reaffirm or Secure Terrorism Insurance

On January 12, 2015, President Obama signed into law H.R. 26, the Terrorism Risk Insurance Program Reauthorization Act of 2015 (TRIPRA of 2015), providing a federal backstop for insurance against risks of terrorism. TRIPRA…more

Terrorism Insurance, TRIA

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New Nevada Employment Law Developments Affect Social Media, Overtime

There have been several notable and recent developments in Nevada employment law both through enacted legislation and advisory opinions issued by the Nevada Labor Commissioner. Specifically, the legislature has passed a law…more

Employee Rights, New Legislation, Social Media Policy, Unpaid Overtime

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Lining Up to Protest - Bid protest dismissed as company fails to allege it was “next in line” for award

The United States Court of Federal Claims, in a decision issued February 10, 2015, dismissed the bid protest complaint filed in Universal Marine Company, K.S.C. v. United States, No. 14-1115C because the protester was not “next…more

Bid Protests, Court of Federal Claims, Dismissals, Federal Contractors

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DOE Issues the Part 810 Final Rule: Summary and Compliance Steps for Industry

Today, the U.S. Department of Energy (DOE) issued the final rule amending its regulations at 10 C.F.R. Part 810 on “Assistance to Foreign Atomic Energy Activities” (“Part 810”). The rule takes effect on March 25, 2015…more

Amended Regulation, Atomic Energy, DOE, Final Rules, NOPR

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Supreme Court to Securities Issuers: Beware What You Omit When Stating Your Opinions

Deciding this Term’s big securities case, a unanimous Supreme Court held on March 24 that a statement of opinion does not become actionable under the “untrue statement of material fact” clause of section 11 of the Securities…more

Material Misstatements, Omnicare, Omnicare v Laborers District Council, Public Offerings, Registration Statement

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The Second Circuit Sets New Hurdles for Insider Trading Convictions

Under the Second Circuit’s new ruling, prosecutors have two large hurdles they must clear to convict under securities laws. First, they must prove that a defendant knew that the source of inside information disclosed tips in…more

Illegal Tipping, Insider Trading, Material Nonpublic Information, Personal Benefit, Securities

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Nevada Supreme Court Adopts Economic Realities Test to Determine Employment Status

Recently, the Nevada Supreme Court in Terry, et al., v. Sapphire Gentlemen's Club, reversed a lower court's ruling and held that performers at Sapphire Gentlemen's Club meet the definition of "employees" under the Nevada Revised…more

Adult Entertainment, Economic Realities Test, Employee Definition, Employer Liability Issues, Entertainment Industry

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Much Ado About Doing Nothing: DOJ’s Latest Memorandum Cracks Open Door to Marijuana Development on Tribal Lands

In December 2014, the Department of Justice (DOJ) released a policy statement regarding enforcement of marijuana laws in Indian Country. While some media have reported the Department’s statement as carte blanche for tribes to…more

DOJ, Marijuana, Marijuana Cultivation, Policy Statement, Tribal Lands

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SEC Proposes Pay Ratio Disclosures

The Securities and Exchange Commission (SEC) has proposed rules under the Dodd-Frank Act to require public companies to disclose the ratio of the annual total compensation of their principal executive officer (PEO) to the median…more

CEOs, Disclosure Requirements, Dodd-Frank, Pay Ratio, SEC

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New Amendments to UCC Article 9 Now Effective in Most Jurisdictions

On July 1, 2013, amendments to Article 9 of the Uniform Commercial Code, which governs using personal property as collateral, became effective in most jurisdictions. The changes to Article 9 a ect both existing and future…more

Article 9, Collateral, Debtors, Personal Property, Registration

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'Reps' and Warranties: One Could Cost More Than the Other Under English Contract Law

Contractual representations and warranties are often grouped together, referred to in shorthand as “reps and warranties.” The differences between the two concepts are often forgotten, but the distinction is important: a…more

Contract Interpretation, GAAP, Representations and Warranties, Stock Purchase Agreement, UK

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Casinos Go Virtual

In late February 2013 the New Jersey Legislature passed legislation allowing on-line wagering, subject to certain limitations. This legislation was signed into law by Governor Chris Christie. Under the new law, licensed…more

Casinos, Chris Christie, Licenses, Online Gaming

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New Amendments to UCC Article 9 Now Effective in Most Jurisdictions

On July 1, 2013, amendments to Article 9 of the Uniform Commercial Code, which governs using personal property as collateral, became effective in most jurisdictions. The changes to Article 9 a ect both existing and future…more

Article 9, Collateral, Debtors, Personal Property, Registration

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EPA Aircraft GHG Emissions Regulations Take Flight: Agency Announces Endangerment Finding for Aircraft Greenhouse Gas Emissions and Plans to Issue New Standards by 2018

After tackling greenhouse gas (GHG) emissions from passenger vehicles and power plants, the Environmental Protection Agency (EPA) on June 10 announced its latest regulatory initiative—a GHG emissions standard for aircraft…more

Aircraft, Clean Air Act, EPA, FAA, Greenhouse Gas Emissions

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California Supreme Court Ruling Limits Commission Wage Allocation

On June 14, 2014, the California Supreme Court held that employers could not satisfy California’s compensation requirements for the commission sales exemption by attributing commission wages paid in one pay period to other pay…more

Corporate Counsel, Employer Liability Issues, Minimum Wage, Sales Commissions, Time Warner Cable

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Don’t Trust, Verify: What Every Business Needs to Know About Certificates of Insurance

The general rule in New York is that a certificate of insurance (COI), by itself, does not provide insurance coverage. That means that businesses that rely solely on COIs as evidence of their status as additional insureds might…more

Additional Insured, Certificate of Insurance, Estoppel, Insurers

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New York Creates Rocket-Docket for Commercial Disputes—But Accelerated Adjudication Comes With Trade-Offs

As of June 2, the Commercial Division of the New York Supreme Court will allow for the accelerated adjudication of commercial disputes. Rule 9 of Section 202.70(g) of the Uniform Rules for the Supreme and County Courts takes…more

Contract Disputes, Discovery, Expedited Discovery

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Cheeky Monkey: Wikipedia claims copyright comes down to the press of a button

In my childhood, come summer, the UK Parliament would go into recess, and because that seemed to signal the end of lots of newsworthy items—political scandals, Government and opposition taunting each other, etc.—the period…more

Copyright, Photographs, Wikimedia

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Update on Maryland Estate Tax

Maryland Governor Martin O’Malley has signed into law H.B. 739 (the “New Law”), which contains revisions to the Maryland estate tax law. Specifically, the New Law gradually increases the Maryland estate tax exemption amount over…more

Estate Planning, Estate Tax, State Taxes, Tax Reform

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Update on Maryland Estate Tax

Maryland Governor Martin O’Malley has signed into law H.B. 739 (the “New Law”), which contains revisions to the Maryland estate tax law. Specifically, the New Law gradually increases the Maryland estate tax exemption amount over…more

Estate Planning, Estate Tax, State Taxes, Tax Reform

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Doing Business in the United States

In This Book: - Choice Of A Business Entity - Introduction To Federal Securities Laws - From Let’s Go Shopping To Closing: M&A Process In The United States - Employment Considerations - Equity…more

Business Formation, Choice of Entity, Commercial Real Estate Market, Corporate Taxes, Dispute Resolution

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Did EPA Overstep in Applying Soil Vapor Intrusion Guidance to Commercial Buildings?

In April 2013, U.S. EPA’s Office of Solid Waste and Emergency Response issued two guidance documents on soil vapor intrusion. One addresses general soil vapor intrusion issues, while the other is specific to petroleum vapor…more

Commercial Leases, Environmental Assessments, Environmental Claims, EPA, OSHA

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Doing Business in the United States

In This Book: - Choice Of A Business Entity - Introduction To Federal Securities Laws - From Let’s Go Shopping To Closing: M&A Process In The United States - Employment Considerations - Equity…more

Business Formation, Choice of Entity, Commercial Real Estate Market, Corporate Taxes, Dispute Resolution

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Guidance for Companies Developing and Implementing Antitrust Compliance Programs

Recent policy statements by the U.S. Department of Justice’s Antitrust Division (“DOJ”) highlight the factors companies should consider when developing and implementing antitrust compliance programs. Effective antitrust…more

Antitrust Provisions, Best Management Practices, Chief Compliance Officers, DOJ

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Catching Up with Winding Down: The Status of California Redevelopment Successor Agencies

Successor agencies to California’s dissolved Redevelopment Agencies (“RDAs”) continue to wind down the operations of the former RDAs under the supervision of oversight boards pursuant to Assembly Bill X1 26 (“AB 26”) as modified…more

Dissolution, Financial Cleanup Provisions, Funding, Payment Schedules, RDAs

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Executive Order Issued on Minimum Wage for Federal Contractors and Subcontractors

On February 12, 2014, President Obama issued an Executive Order to raise the minimum wage for Federal contractors and subcontractors under certain contracts, as he had foreshadowed in this year’s State of the Union. The…more

Executive Orders, Federal Contractors, Minimum Wage

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New Canadian Anti-Spam Rules to Take Effect July 1, 2014

Businesses that use “commercial electronic messages” to market to customers and prospective customers in Canada should be aware of Canada’s new anti-spam rules, which require, among other things, the sender to obtain consent…more

Advertising, Anti-Spam Legislation, Canada, CASL, Consent

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Bipartisan Spotlight on Medicare Advantage Risk Adjustment Fraud Likely to Spur Audits

Potential fraud and abuse in the Medicare Advantage Program (“MA Program”) has become the focus of two senior-ranking Senators on each side of the aisle—Chuck Grassley (R-Iowa) and Claire McCaskill (D-Mo.)—and this attention is…more

Audits, CMS, DOJ, Fraud and Abuse, Healthcare

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Mexico’s Energy Reform Provides Significant Opportunities In Oil And Gas Exploration And Production

Mexico’s new energy legislation, which went into effect on August 12, 2014, will completely restructure the Mexican energy sector, including both hydrocarbons and electricity. This legislation opens up oil and gas exploration…more

Energy Reform, Exploration and Production Assets, Foreign Investment, Mexico, Oil & Gas

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Ancillary Joint Ventures Involving Taxable and Tax-Exempt Health Care Entities: Addressing the Chilling Effect of IRS Inaction

Tax-exempt health care systems facing growing operating costs and falling revenues frequently explore creation of ancillary joint ventures (AJVs) as vehicles to raise capital, share risk, expand coverage, and provide care more…more

Health Care Providers, Healthcare, Hospital Mergers, Hospitals, IRS

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70 Days and Counting: Clock Is Ticking to Claim Embedded Software Tax Exemption

The amount of non-taxable embedded software being taxed in California is a staggering number. While companies own assets with millions of dollars of embedded software, few companies are maximizing their property tax savings…more

Software, Tax Exemptions

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Running a Sweepstakes or Contest on Social Media?

If entry for the chance to win a prize requires participants to post content featuring your company’s products or services, the participants should be instructed to disclose that their posts are pursuant to a contest…more

Cole Haan, Content Marketing, Contests & Promotions, Disclosure, Endorsements

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New York City Largely Bans Employers from Considering Consumer Credit History

On May 6, 2015, New York City Mayor Bill de Blasio signed into law a bill barring employers in New York City from discriminating against employees and applicants based on their consumer credit histories. The exceptions to this…more

Discrimination, Employee Credit Checks, Hiring & Firing, NYCHRL

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DOL’s Proposed Prohibited Transaction Exemption: Best Interest Contracts

This is the second in a series of client advisories regarding the U.S. Department of Labor’s re-proposed regulations (Proposed Rule) defining who is a fiduciary under ERISA and the Code as a result of providing investment…more

Benefit Plan Sponsors, Best Interest Contract Exemptions, Covered Transactions, DOL, ERISA

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Is Proxy Disclosure Shareholder Litigation on Executive Compensation Finally Over?

Since the advent of “Say-on-Pay” over three years ago, the plaintiffs’ securities bar has attempted to rustle up claims relating to executive compensation matters discussed in proxy statements. The first wave against those…more

Executive Compensation, Proxies, Say-on-Pay, Shareholder Litigation, Shareholders

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SaaS: Key Pricing Considerations (Part 1)

Software as a Service (SaaS) is growing rapidly as an alternative to licensing on-premises software for corporate customers. As reported by Forbes earlier this year, analysts are forecasting that global SaaS revenues will reach…more

Emerging Technology Companies, Enterprise Software, SAAS, Software

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Framework for Nuclear Agreement with Iran Announced—But Still a Long Way to Go

On April 2, 2015 representatives of the United States, Britain, France, Germany, China and Russia (collectively, the “P5+1” countries) announced that they had agreed with the Islamic Republic of Iran on the Parameters for a…more

Framework Agreement, Iran, Nuclear Power, P5+1 Nations, Sanctions

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India’s Aviation Safety Rating Downgrade Could Have Cascading Effects

On January 31, 2014, the U.S. Federal Aviation Administration (FAA) downgraded India’s aviation safety rating to Category 2 under the FAA’s International Aviation Safety Assessment (IASA) program – a program designed to ensure…more

Aviation Industry, FAA, IASA, ICAO, India

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New York Revises “BitLicense” Regulations for Virtual Currency Businesses

Seven months after releasing its BitLicense proposal, the State of New York has published substantial revisions. Like the original version, the revised regulations apply more broadly than federal regulations and require many…more

BitLicense, Capitalization, Financial Reporting, Popular, Registration Requirement

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Antitrust “State Action” Exemption: North Carolina State Board of Dental Examiners v. Federal Trade Commission

On February 25, 2015, the U.S. Supreme Court issued its decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission, holding that a regulatory board made up of market participants is exempt from…more

Antitrust Litigation, FTC, NC Board of Dental Examiners v FTC, SCOTUS, State Action Doctrine

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Doing Business in the United States

In This Book: - Choice Of A Business Entity - Introduction To Federal Securities Laws - From Let’s Go Shopping To Closing: M&A Process In The United States - Employment Considerations - Equity…more

Business Formation, Choice of Entity, Commercial Real Estate Market, Corporate Taxes, Dispute Resolution

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Oil Regulation 2014 - United States

The US oil industry is divided into three sectors: upstream (exploration and production), midstream (processing, storage and transportation) and downstream (refining, distribution and marketing). Industry participants…more

BP, Chevron, ConocoPhillips, Exxon Mobil, Oil & Gas

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Don’t Trust, Verify: What Every Business Needs to Know About Certificates of Insurance

The general rule in New York is that a certificate of insurance (COI), by itself, does not provide insurance coverage. That means that businesses that rely solely on COIs as evidence of their status as additional insureds might…more

Additional Insured, Certificate of Insurance, Estoppel, Insurers

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GSA May Abolish the Price Reduction Clause

On March 4, 2015, the U.S. General Services Administration (GSA) issued a proposed rule that could abolish the long-standing price reduction clause (PRC) from the GSA Schedule program. GSA is proposing to eliminate the clause…more

Federal Contractors, GSA, Price Reduction Clause

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IT Services with Chinese Characteristics

The "Amazon of China" is following Amazon's playbook yet again with their investment in the cloud. Aliyun, Alibaba's technology arm, already operates five Chinese data centers supporting 1.4 million customers. They cite high…more

Amazon, China, Cloud-Based Services, Data Centers

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Nevada’s AG Reminds Retailers, Wholesalers and Suppliers: Comply with Alcohol Beverage Laws

On January 30, 2014 the State of Nevada Attorney General’s Office issued an open letter to all retailers, wholesalers and suppliers of alcohol beverages in Nevada reminding them of their legal obligation to comply with the…more

Retailers, Suppliers, Wholesale, Wine & Alcohol

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SEC Proposes Pay-for-Performance Disclosure Rules

On April 29, 2015, the Securities and Exchange Commission (SEC) proposed a new rule under the Dodd-Frank Wall Street Reform and Consumer Protection Act that would require public companies to disclose the relationship between the…more

Disclosure Requirements, Executive Compensation, Pay-for-Performance, Proxy Statements, Publicly-Traded Companies

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Banking Technology: Finding the Balance Between Cost-Effectiveness and Manageability

As the range of technology employed by the UK's leading banks widens, the balance between cost-effectiveness and manageability of solutions becomes increasingly difficult to strike. Mike Pierides (Partner) and Rich Jones…more

Banking Sector, Information Technology Outsourcing, Outsourcing, Technology, UK

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Transportation Finance Digest: Volume 1

In This Issue: - Introduction - All Hat And No Chattel: Life After Cape Town - Q&A - The Future Of Eca Financing - Deal Of The Year - An Innovative Engine Re-Securitization - Pillsbury Case…more

Aircraft Sales, Aviation Contracts, Aviation Industry, Chattel Paper, Export Credit Agency

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New York City Bars Employers from Considering Criminal History before Extending a Job Offer

On June 29, 2015, Mayor de Blasio signed the Fair Chance Act, a new law that generally prohibits New York City employers from discriminating against job applicants with a criminal record and that prohibits inquiries about…more

Background Checks, Ban the Box, Conditional Job Offers, Criminal Background Checks, Employer Liability Issues

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Developments in Renewable Energy in Saudi Arabia

A number of projects and initiatives may mark the beginning of a new renewable energy industry in Saudi Arabia. The Middle East and North Africa region has an extraordinary potential for the development of renewable…more

Clean Energy, Energy Policy, Kyoto Protocol, Middle East, Renewable Energy

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Copyright Assignment Termination After 35 Years: The Video Game Industry Comes of Age

A little-known section of the Copyright Act allows designers and developers of video games to terminate copyright assignments granted after January 1, 1978. Section 203 of the Act was intended to give creators of…more

Assignments, Copyright, Termination, The Copyright Act, Video Games

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New York Appeals Court Reinstates Poker Conviction

The NY appeals court reinstated a gambling conviction against a man who ran an illegal Texas Hold'em lounge. Originally, the gambling conviction was dismissed, largely based on the argument that poker was a game of skill, and…more

Convictions, Gambling, Online Poker

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FAQ for Entrepreneurs

You’re an entrepreneur and you have a great idea for a new product. Or maybe you’ve already created a product, like an app, and have sold it to several customers. So, when should you talk to a lawyer and what should you ask?…more

Emerging Growth Companies, Entrepreneurs, Startups

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Delaware’s Adoption of Garner — and Practical Ways to Respond

On July 23, 2014, the Delaware Supreme Court in Wal-Mart Stores Inc. v. Indiana Electrical Workers Pension Trust Fund IBEW held that plaintiff stockholders, who make a showing of good cause, can inspect documents concerning a…more

Attorney-Client Privilege, Garner, Internal Investigations, Securities Act of 1933, Securities Exchange Act

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Supreme Court Raises Bar for Class Certification

In Comcast Corporation, et al. v. Behrend, the US Supreme Court reversed two lower courts in concluding that the Plaintiffs failed to satisfy Rule 23(b)(3) because their expert’s report did not establish that damages could be…more

Class Action, Class Certification, Comcast, Comcast v. Behrend, Damages

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New York AG Takes a Swipe at Payroll Cards

Employers and employees are increasingly turning to payroll cards, rather than paper paychecks, to pay and receive their payrolls. However, a class action was filed recently in Pennsylvania challenging certain practices and it…more

Attorney Generals, Class Action, Passwords, Payroll Cards, Payroll Records

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Supreme Court Allows Changes to Agencies’ Interpretive Rules without the Notice-and-Comment Rulemaking Process

In March, the Supreme Court upheld an agency’s reversal of its own regulatory interpretation without requiring notice-and-comment rulemaking. Regulated entities now face considerable uncertainty in relying on agencies’…more

Administrative Procedure Act, Notice and Comment, Paralyzed Veterans Doctrine, Perez v Mortage Bankers Assoc, Rulemaking Process

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Private Equity: Blindsided by the FCPA — Hedging Against Anti-Corruption Deal Risk

Until a few years ago, private equity firms enjoyed relative insulation from regulatory scrutiny of overseas acquisitions and the operations of multi-national portfolio companies. No longer is that the case. Spurred by the…more

Acquisitions, Anti-Corruption, DOJ, FCPA, Foreign Investment

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Raging Bull Heiress Knocks Out MGM’s Laches Defense

In Petrella v. Metro-Goldwyn-Mayer, Inc., Supreme Court holds that laches cannot bar claims for damages for copyright infringement brought during the 3-year limitations period. On May 19, 2014, in a case concerning the…more

Affirmative Defenses, Copyright, Copyright Infringement, Laches, MGM

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Obamacare HealthCare.gov Issues Serve as a Reminder to Embrace Best Practices in Software Development and Integration Projects

October 1st marked the beginning of open enrollment for the federal and state health care exchanges ("Exchanges") created to comply with the Affordable Care Act ("ACA") of 2010, commonly referred to as Obamacare. The creation of…more

Affordable Care Act, Health Insurance Exchanges, Healthcare, Open Enrollment, Software

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Intent to Lose? Be Wary of Pitfalls Involving Intent-to-Use Trademark Applications.

Merger and Acquisitions often involve the acquisition and/or assignment of trademarks. Companies acquiring trademarks must beware of potential problems lurking with intent-to-use (ITU) trademark applications (or applications…more

Acquisitions, Assignments, Due Diligence, First-to-File, Intent-to-Use

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An American Policyholder in London: English Choice of Law Clauses in United States Insurance Policies

While certainly not the norm, it is not uncommon for insurance policies issued to companies based in the United States, particularly large commercial and excess policies brokered on the London Market, to contain choice of law…more

Choice-of-Law, Jurisdiction, UK

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Delaware Offers New Guidance on Enforcing Fiduciary Duties Owed to Insolvent Corporations

On May 4, 2015, Vice Chancellor Travis Laster of the Delaware Court of Chancery issued a decision in Quadrant Structured Products Co., Ltd. v. Vertin, analyzing creditors’ standing to bring derivative claims against directors…more

Board of Directors, Creditors, Derivative Suit, Directors, Fiduciary Duty

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Don’t Shoot the Messenger: The Expanding Scope of the John Doe Summons

The John Doe summons is an information-gathering tool that has been available to the IRS for many years, traditionally used to seek information about unknown persons suspected of tax evasion from banks, investment advisors or…more

DHL, FedEx, Financial Institutions, Government Investigations, IRS

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Companies Should Consider Cuban Trademark Protection – Now

In December 2014, President Obama made an unexpected announcement signaling a “new course” for Cuba after more than fifty years of comprehensive U.S. sanctions. The changes to U.S. sanctions and export policy under the Cuban…more

Cuba, EAR, Embargo, Popular, Trade Policy

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Deadlines Coming for Multinationals’ Retirement Plans and U.S. Taxpayers with Foreign Financial Interests

In 2010, the U.S. enacted a sweeping change in enforcement of its tax laws on foreign financial interests, the Foreign Account Tax Compliance Act (FATCA). The main thrust of the act is to penalize foreign financial institutions…more

Bank Secrecy Act, FACTA, FATCA, FATCA Timeline, FBAR

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The U.S. Supreme Court Upholds EPA’s Cross-State Air Pollution Rule in EPA v. EME Homer City Generation, L.P., Paving the Way to Further Use of Cap-and-Trade Programs to Control Emissions of SO2 and NOx from Electric Power Plants.

On April 24, the Supreme Court issued a 6-2 decision in EPA v. EME Homer City Generation, L.P., No. 12-1182, 572 U. S. ____, 2014 WL 1672044 (2014), upholding EPA’s latest version of a regional cap-and-trade program under the…more

Cap-and-Trade, Carbon Emissions, Clean Air Act, EPA v EME Homer City, NAAQS

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U.S. District Court Reaffirms Distressed Debt Funds Not Eligible Assignees under Loan Agreement

A recent decision by the U.S. District Court for the Western District of Washington found that certain distressed debt funds were not “financial institutions” under the definition of “Eligible Assignee” in the applicable loan…more

Assignments, Chapter 11, Commercial Bankruptcy, Loan Agreements, Loan Modifications

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XL is Not Always the Right Fit: Sometimes the Right Contract Template is Not the Longest Contract Template

As a thin guy, I used to subscribe to the philosophy of wearing large clothes to look bigger than I was. What I actually looked like was a scrawny guy in ill-fitting clothes that were not overly comfortable…more

Contract Drafting, Master Service Agreement, SAAS

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Caught Between Laws: Challenges for Health Care Providers in Using Criminal History Information in Employment Decisions

In an effort to increase protection for vulnerable patient populations, the Affordable Care Act (ACA) creates incentives for states to strengthen the employment background check programs available to long-term care providers…more

Affordable Care Act, Background Checks, Criminal Background Checks, EEOC, Employer Liability Issues

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Health Care Reform Update: July 31 Fee Deadline for Most Self-Insured Plans

The IRS has released a revised version of Form 720 “Quarterly Federal Excise Tax Return” for sponsors of self-insured health plans to pay annual fees imposed under the Affordable Care Act. The fee for 2013 is $1 per covered…more

Affordable Care Act, Fees, Form 720, IRS, PCORI

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Will EPA Be Able to Avoid Regulating Existing Sources of Methane?

The Obama administration recently announced plans to directly regulate methane gas emissions from oil and gas wells for the first time. A cornerstone of the regulations will be New Source Performance Standards (NSPS) for new and…more

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Bipartisan Spotlight on Medicare Advantage Risk Adjustment Fraud Likely to Spur Audits

Potential fraud and abuse in the Medicare Advantage Program (“MA Program”) has become the focus of two senior-ranking Senators on each side of the aisle—Chuck Grassley (R-Iowa) and Claire McCaskill (D-Mo.)—and this attention is…more

Audits, CMS, DOJ, Fraud and Abuse, Healthcare

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Perspectives - Fall 2012 Volume 3, Edition 2: An Executive Compensation, Benefits & Human Resources Law Update

In this Issue: - Don’t “Moench”ion It: Supreme Court Rejects Presumption of Prudence for ESOP Fiduciaries - Avoiding Claims of Excessive Fund Fees - Risk of ERISA Class Actions Can Be Reduced by Use of Plan…more

Arbitration Agreements, Class Action, Class Action Arbitration Waivers, ERISA, ESOP

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New California Legislation Mandates Paid Sick Days for Employees.

On September 10, 2014, California Governor Jerry Brown signed into law AB 1522, the Healthy Workplaces, Healthy Families Act of 2014 (“the Act”). The Act grants nearly all California employees the right to at least three days…more

Employee Rights, Paid Leave, Sick Leave

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The Label on Your "Handmade" Whiskey Is Causing More Problems Than You Think

The recent market for artisanal and handcrafted goods has spawned a spate of consumer class actions against makers of popular liquors, including Tito’s Vodka, Maker’s Mark, and Jim Beam, for using terms like “handmade,”…more

Artisanal, Class Action, Handcrafted, Labeling, Safe Harbors

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Safe Tweeting: SEC Provides Guidance on Social Media and Regulation FD Compliance

The SEC has provided guidance to publicly reporting companies on how to use popular social networking sites, such as Facebook and Twitter, consistent with federal securities laws. On April 2, 2013, the Securities and…more

Facebook, Investors, Netflix, Public Disclosure, Reed Hastings

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DOE Issues New “Strategy” for Nuclear Waste Management and Disposal

On January 11, 2013, the Department of Energy (“DOE”) issued its response to the recommendations of the Blue Ribbon Commission on America’s Nuclear Future regarding next steps for spent nuclear fuel management and disposal in…more

DOE, Nuclear Power, Waste

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Doing Business in the United States

In This Book: - Choice Of A Business Entity - Introduction To Federal Securities Laws - From Let’s Go Shopping To Closing: M&A Process In The United States - Employment Considerations - Equity…more

Business Formation, Choice of Entity, Commercial Real Estate Market, Corporate Taxes, Dispute Resolution

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Transportation Finance Digest: Volume 1

In This Issue: - Introduction - All Hat And No Chattel: Life After Cape Town - Q&A - The Future Of Eca Financing - Deal Of The Year - An Innovative Engine Re-Securitization - Pillsbury Case…more

Aircraft Sales, Aviation Contracts, Aviation Industry, Chattel Paper, Export Credit Agency

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Catching Up with Winding Down: The Status of California Redevelopment Successor Agencies

Successor agencies to California’s dissolved Redevelopment Agencies (“RDAs”) continue to wind down the operations of the former RDAs under the supervision of oversight boards pursuant to Assembly Bill X1 26 (“AB 26”) as modified…more

Dissolution, Financial Cleanup Provisions, Funding, Payment Schedules, RDAs

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Update: Final Rules Clarify New York City Employers’ Sick Leave Obligations

In response to widespread employer concerns over ambiguities in New York City’s Earned Sick Time Act (“ESTA”), the New York City Department of Consumer Affairs (“DCA”) published its Final Rules regarding the ESTA on July 30,…more

Earned Sick Time, Employee Rights, Employer Liability Issues, Employment Policies, Final Rules

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China’s New Policy for Foreign Investment in E-Commerce - Shanghai Free Trade Zone Opens Door for Complete Foreign Ownership in E-Commerce Operations

Further to the early 2014 policy that relaxed the restrictions on the foreign equity ratio in value-added telecommunications business in the Shanghai Free Trade Zone (“Shanghai FTZ”), on January 15, 2015, the Ministry of…more

China, E-Commerce, Foreign Investment, Free Trade Zone, Popular

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FCA issues considerations on the procurement of off the shelf technology solutions (United Kingdom)

In July, the Financial Conduct Authority (FCA - the financial regulatory body in the United Kingdom) issued a paper titled "Considerations for firms thinking of using third-party technology (off-the-shelf) banking solutions"…more

Banking Sector, Banks, FCA, Software, UK

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U.S. Government Shutdown: Will Performance of Private Contracts Be Excused?

With Congress unable to reach an agreement on a continuing resolution, the federal government shut down all “non-essential” services on October 1, 2013. The shutdown will remain in effect until Congress passes appropriations…more

Breach of Contract, Force Majeure Clause, Government Shutdown, Specific Performance

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China Issues Draft Legislation to Strengthen Regulation over Foreign NGOs

Nonprofit and nongovernmental organizations in the PRC (NGOs), both domestic and foreign, have played important roles in China’s economic and social development over the years. While the number of foreign NGOs conducting…more

China, New Regulations, NGOs, Private Foundations

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USGS’s Increase of Texas’s Earthquake Risk Level: Commercial Real Estate and Insurance Implications

Before 2008, the greater Dallas Fort Worth area, known as the Fort Worth Basin, was almost entirely void of seismic activity. Between 1950 and 2008, the only seismic activity on record was an insignificant event that experts…more

Commercial General Liability Policies, Commercial Property Owners, Earthquake Insurance, Earthquakes, Secured Lenders

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Best Laid Plans Gone Awry: Practices for Rule 10b5-1 Trading Plans

Rule 10b5-1 trading plans are in the limelight due to investigations initiated by U.S. Attorney’s Offices and the SEC into possible abuses by corporate executives of such plans. Now, more than ever, companies and their boards of…more

Board of Directors, Compliance, Insider Trading, Material Nonpublic Information, Rule 10b-5

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Rhode Island Cleans Up Problematic Superfund Precedent That Undermined Federal Settlements

The U.S. District Court for the District of Rhode Island has vacated its 2010 summary judgment decision in Ashland Inc. v. GAR Electroforming, 729 F. Supp. 2d 526 (D.R.I. 2010), just days after receiving an amicus memorandum by…more

CERCLA, Contribution Protection, Environmental Liability, Settlement, Superfund

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Ramifications of the Supreme Court’s McCutcheon Campaign Finance Ruling

The U.S. Supreme Court’s decision today in an important campaign finance case frees individual political donors to contribute to an unlimited number of federal campaigns and committees, as long as each contribution is within…more

Aggregation Rules, Campaign Contributions, FEC, McCutcheon v. FEC, SCOTUS

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How to Fail in the Internet of Things

Innovation is prized in the growing space of the Internet of Things (IoT). But an innovative product design is not enough, and potential pitfalls abound. As demonstrated in a report published by the Federal Trade Commission…more

Data Collection, Data Protection, FTC, Internet, Internet of Things

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Final Federal Reserve Rules for Foreign Banking Organizations

This Alert describes the final regulations issued by the Federal Reserve Board (the “FRB”) on February 18, 2014, that radically modify the former requirements applicable to foreign banking organizations (“FBOs”) pursuant to the…more

Banks, Dodd-Frank, Federal Reserve, Foreign Banks, Regulation K

See All Updates »

New California Legislation Mandates Paid Sick Days for Employees.

On September 10, 2014, California Governor Jerry Brown signed into law AB 1522, the Healthy Workplaces, Healthy Families Act of 2014 (“the Act”). The Act grants nearly all California employees the right to at least three days…more

Employee Rights, Paid Leave, Sick Leave

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Convention on Supplementary Compensation: Liability Implications for the Nuclear Industry

Now that Japan’s Diet, as of November 21, 2014, has approved Japan’s ratification of the Convention on Supplementary Compensation for Nuclear Damage (CSC) and implementing domestic legislation, Japan presumably will soon deposit…more

IAEA, Japan, Nuclear Power

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California Consumers Have Standing to Sue When Merchandise Is Falsely Advertised as “On Sale”

The Ninth Circuit has held that allegations a consumer was misled into purchasing merchandise based on false advertising that the items had been marked down from a fictitious “original” price are sufficient to confer standing…more

Advertising, False Advertising, Misrepresentation, Unfair Competition, Unfair Pricing

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Montage IPO – Are The U.S. Markets Re-Opening To Chinese Companies?

The U.S. capital markets—the largest in the world—have been all but closed to Chinese companies for more than two years. The successful IPO of Montage Technology, and e-commerce giant Alibaba’s announcement that it will seek a…more

Audits, Capital Markets, China, Corporate Governance, Foreign Corporations

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Court of Appeal Holds Transfer Tax Applies to Legal Entity Changes in Ownership

In 926 North Ardmore Avenue, LLC v. County of Los Angeles, the 2nd District Court of Appeal held that Proposition 13 changes in ownership prompted by transfers of legal entity interests should also be characterized as “realty…more

Appeals, Change in Ownership, Legal Entities, Limited Liability Companies, Proposition 13

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Ramifications of the Supreme Court’s McCutcheon Campaign Finance Ruling

The U.S. Supreme Court’s decision today in an important campaign finance case frees individual political donors to contribute to an unlimited number of federal campaigns and committees, as long as each contribution is within…more

Aggregation Rules, Campaign Contributions, FEC, McCutcheon v. FEC, SCOTUS

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American Taxpayer Relief Act of 2012

On New Year’s Day 2013, to avoid the so-called “fiscal cliff,” Congress passed the American Taxpayer Relief Act of 2012 (“2012 Act”). The 2012 Act raises taxes on some taxpayers while retaining most of the provisions enacted by…more

American Taxpayer Relief Act, Bush-Era Tax Cuts, Debt Ceiling, Estate Tax, Fiscal Cliff

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New FCPA Guidance Provides Insight Into Government’s View of Corporate Compliance

On November 14, 2012, the Foreign Corrupt Practices Act “Resource Guide” (the “Guidance”) was finally published, and at well over 100 pages, it constitutes a “non-binding informal summary” of various statutes, U.S. Department of…more

Compliance, DOJ, FCPA, FCPA Resource Guide, SEC

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Doing Business in the United States

In This Book: - Choice Of A Business Entity - Introduction To Federal Securities Laws - From Let’s Go Shopping To Closing: M&A Process In The United States - Employment Considerations - Equity…more

Business Formation, Choice of Entity, Commercial Real Estate Market, Corporate Taxes, Dispute Resolution

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Mexico’s Energy Reform Provides Significant Opportunities In Oil And Gas Exploration And Production

Mexico’s new energy legislation, which went into effect on August 12, 2014, will completely restructure the Mexican energy sector, including both hydrocarbons and electricity. This legislation opens up oil and gas exploration…more

Energy Reform, Exploration and Production Assets, Foreign Investment, Mexico, Oil & Gas

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The UDAAP Trap: How Financial Institutions can Avoid Penalties when Using Third Party Services

In Part 1, we noted that financial institutions could find themselves potentially liable for committing an alleged Unfair, Deceptive, or Abusive Act or Practice (UDAAP) as a result of the actions of certain types of external…more

Banks, CFPB, Enforcement, Enforcement Actions, Third-Party Risk

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Keep Calm and Carry on with Nuclear Power, Part II

A little over two weeks after the 2011 accident at the Fukushima Daiichi nuclear power plant in Japan, I wrote a column for The Hill, “Keep calm and carry on with nuclear power,” in which I stated: Now is not the time for…more

Electricity, Energy Sector, Nuclear Power, Nuclear Regulatory Commission, Power Plants

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HSR Thresholds Will Increase Slightly for Transactions in 2015

On February 20, 2015, revised thresholds for the Hart-Scott-Rodino Act (“HSR”) will take effect. The thresholds determine whether parties involved in proposed mergers, consolidations, or other acquisitions of voting securities,…more

Filing Fees, FTC, Hart-Scott-Rodino Act, Jurisdiction, Premerger Notifications

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FTC Issues New Guidance for Mobile App Developers that Collect Location Data

A mobile app that collects users’ location data while the mobile app is not in use should clearly disclose such practices and provide users with choices. Failure to do so could give rise to an FTC claim of deceptive practices…more

FTC, Location Data, Location Privacy, Mobile Apps, New Guidance

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Appellate Division Review - Business Judgment Rule, Privilege, Child Support, Animal Rights

The more things change, the more they remain the same. As we enter a new year, New York’s Appellate Division faces the same and greater challenges: increasing caseloads, staff shortages, judicial vacancies, and legal disputes…more

Animal Rights, Attorney-Client Privilege, Bank of America, Business Judgment Rule, Bylaws

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Delaware Offers New Guidance on Enforcing Fiduciary Duties Owed to Insolvent Corporations

On May 4, 2015, Vice Chancellor Travis Laster of the Delaware Court of Chancery issued a decision in Quadrant Structured Products Co., Ltd. v. Vertin, analyzing creditors’ standing to bring derivative claims against directors…more

Board of Directors, Creditors, Derivative Suit, Directors, Fiduciary Duty

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Can Regulation A+ Succeed Where Regulation A Failed?

On March 25, 2014, the Securities and Exchange Commission (SEC) adopted final amendments to Regulation A under the Securities Act of 1933, or what is now being referred to as Regulation A+. While much of the existing framework…more

Amended Legislation, Capital Formation, JOBS Act, Regulation A, SEC

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Unusual Bipartisanship Makes New Free Trade Agreements More Likely

Major new free trade agreements are on the horizon. For the past several years, the Obama Administration has been negotiating two new major free trade agreements: the Trans-Pacific Partnership (TPP) and the Trans-Atlantic Trade…more

Contract Negotiations, Free Trade Agreement, Legislative Agendas, Obama Administration, Trans-Pacific Partnership

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USGS’s Increase of Texas’s Earthquake Risk Level: Commercial Real Estate and Insurance Implications

Before 2008, the greater Dallas Fort Worth area, known as the Fort Worth Basin, was almost entirely void of seismic activity. Between 1950 and 2008, the only seismic activity on record was an insignificant event that experts…more

Commercial General Liability Policies, Commercial Property Owners, Earthquake Insurance, Earthquakes, Secured Lenders

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EPA Aircraft GHG Emissions Regulations Take Flight: Agency Announces Endangerment Finding for Aircraft Greenhouse Gas Emissions and Plans to Issue New Standards by 2018

After tackling greenhouse gas (GHG) emissions from passenger vehicles and power plants, the Environmental Protection Agency (EPA) on June 10 announced its latest regulatory initiative—a GHG emissions standard for aircraft…more

Aircraft, Clean Air Act, EPA, FAA, Greenhouse Gas Emissions

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IRS Issues Long-Promised Guidance Following Historic Boardwalk Decision

To welcome in the new year, the Internal Revenue Service (the “IRS”) issued Rev. Proc. 2014-12, 2014-3 I.R.B. 415, to provide administrative guidance to the federal historic tax credit industry in the aftermath of the Third…more

IRS, Rehabilitation Benefits, Safe Harbors, Tax Credits

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Proposed Change to Export Controls Would Allow Use of the Cloud for Encrypted Data

On June 3, 2015 the State Department’s Directorate of Defense Trade Controls (DDTC) and the Commerce Department’s Bureau of Industry and Security (BIS) published proposed regulations which would change the definition of the term…more

BIS, Cloud Computing, Corporate Counsel, Data Protection, Data Storage Providers

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Antitrust “State Action” Exemption: North Carolina State Board of Dental Examiners v. Federal Trade Commission

On February 25, 2015, the U.S. Supreme Court issued its decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission, holding that a regulatory board made up of market participants is exempt from…more

Antitrust Litigation, FTC, NC Board of Dental Examiners v FTC, SCOTUS, State Action Doctrine

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Pillsbury Bloggers in the News: 8 Tips to Deal With Liability When Outsourcing to Multiple IT Vendors

Mario Dottori is quoted in Stephanie Overby's recent CIO.com article discussing 8 Tips to Deal With Liability When Outsourcing to Multiple IT Vendors. "In theory, a multi-provider service delivery environment should not…more

Employer Liability Issues, Information Technology Outsourcing, Third-Party Risk

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Some New (and Some Rejected) Exemptions to the Digital Millennium Copyright Act

The U.S. Copyright Office issued its exemptions to the Digital Millennium Copyright Act of 1998 ("DMCA") on October 26. The exemptions, effective as of Oct. 28, define the limited circumstances in which users are allowed to…more

DMCA

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Guidance for Companies Developing and Implementing Antitrust Compliance Programs

Recent policy statements by the U.S. Department of Justice’s Antitrust Division (“DOJ”) highlight the factors companies should consider when developing and implementing antitrust compliance programs. Effective antitrust…more

Antitrust Provisions, Best Management Practices, Chief Compliance Officers, DOJ

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Enterprise Infrastructure Management Is Not a Part-Time Job

We recently completed a major renegotiation of a very large, longstanding infrastructure outsourcing contract. As is typical with renegotiations, there were areas of the contract that required changes and areas the client wanted…more

Computer-System Design/Software Services, Contract Negotiations, Negotiations, Software, Technology

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Proposed U.S. Department of Transportation Passenger Protection Rules Offer Opportunity for Travel Industry Comments

On May 21, 2014, the U.S. Department of Transportation (DOT) proposed new passenger protection rules for the airline and travel industries, which would add to DOT’s extensive “Enhancing Airline Passenger Protections” regulations…more

Airlines, Aviation Industry, Department of Transportation, Safety Precautions

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Four Things You Should Know about New York State’s Recent Advisory Opinion on the Taxation of Software as a Service (“SaaS”)

On May 15, 2015, the New York State Department of Taxation and Finance released Advisory Opinion TSB-A-15(2)S which concluded that sales of certain cloud computing services are not subject to New York State sales and use tax…more

Advisory Opinions, Cloud Computing, Cloud-Based Services, SAAS, Sales & Use Tax

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The UDAAP Trap: How Financial Institutions can Avoid Penalties when Using Third Party Services

In Part 1, we noted that financial institutions could find themselves potentially liable for committing an alleged Unfair, Deceptive, or Abusive Act or Practice (UDAAP) as a result of the actions of certain types of external…more

Banks, CFPB, Enforcement, Enforcement Actions, Third-Party Risk

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SEC Proposes Pay Ratio Disclosures

The Securities and Exchange Commission (SEC) has proposed rules under the Dodd-Frank Act to require public companies to disclose the ratio of the annual total compensation of their principal executive officer (PEO) to the median…more

CEOs, Disclosure Requirements, Dodd-Frank, Pay Ratio, SEC

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EU Cybersecurity Regulations - The Costs of Financial Market Infrastructure Resiliency

Any company that uses information technology is a potential target for data theft, advanced malware and other cyber threats. Cyber threats have emerged as a growing systemic risk particularly to the financial sector in which…more

See All Updates »

The FIFA Scandal: The Long Foot of American Justice

Envelopes of cash. Vote rigging. Wiretapped recordings in 5-star hotel rooms. A dramatic early morning police raid coordinated between the FBI and Swiss law enforcement. An episode of the Sopranos? No, but it is a day in the…more

Bribery, Corruption, Criminal Prosecution, Extraterritoriality Rules, FCPA

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EU adopts new regulation on cross-border electronic identification and e-signatures

The General Affairs Council, on 23 July 2013, adopted a regulation of the European Parliament and of the Council on electronic identification and trust services for electronic transactions in the Internal Market. Until the new…more

Cross-Border, Data Protection, E-SIGN, EU, Signatures

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Transportation Finance Digest: Volume 1

In This Issue: - Introduction - All Hat And No Chattel: Life After Cape Town - Q&A - The Future Of Eca Financing - Deal Of The Year - An Innovative Engine Re-Securitization - Pillsbury Case…more

Aircraft Sales, Aviation Contracts, Aviation Industry, Chattel Paper, Export Credit Agency

See All Updates »

Applications Outsourcing Pricing - Part 3

As noted in our previous blog postings on the subject (Applications Outsourcing Pricing - Part 1 and Applications Outsourcing Pricing - Part 2), the most prevalent model for pricing applications outsourcing services involves the…more

Applications, Competitive Bidding, Fees, Financial Planning, Outsourcing

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7th Circuit Holds Successor Liable for FLSA Claims, Despite Buyer’s Disclaimer

In Teed v. Thomas & Betts Power Solutions, LLC, the 7th Circuit in an opinion written by Judge Posner held that, absent a good reason to withhold liability, a purchaser of assets was subject to successor liability for Fair Labor…more

Asset Purchaser, Auction, FLSA, Successor Liability

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Texas Renews Efforts to Require Cash Redemption of Certain Stored Value Cards

Texas renews effort to require that certain stored value cards be redeemable for cash if the balance on the card is less than $2.50. In early March, Texas House Bill 2391 was introduced. It would require a cash refund to…more

Gift-Cards, Pending Legislation, Refunds

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Shamrock Shake: St. Patrick’s Day Earthquake in Los Angeles Is a Reminder to Check Your Property Insurance Policy

Los Angeles residents didn’t need to go to McDonald’s for their “Shamrock Shake” on St. Patrick’s Day 2014. At 6:25 a.m., a 4.4-magnitude earthquake shook L.A. County out of bed. Monday’s shake serves as a reminder to be…more

Earthquakes, Property Damage, Property Insurance

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Circuit Court Split on ACA Could Impact Employer Penalties

In conflicting opinions released on July 22nd, two federal circuits split on whether Affordable Care Act subsidies are available under a federally operated health insurance exchange. “Pay or play” penalties apply only if…more

Affordable Care Act, Employee Rights, Employer Liability Issues, Employer Mandates, Healthcare

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Final Federal Reserve Rules for Foreign Banking Organizations

This Alert describes the final regulations issued by the Federal Reserve Board (the “FRB”) on February 18, 2014, that radically modify the former requirements applicable to foreign banking organizations (“FBOs”) pursuant to the…more

Banks, Dodd-Frank, Federal Reserve, Foreign Banks, Regulation K

See All Updates »

Ninth Circuit Eliminates Presumption of Irreparable Injury for Plaintiffs Seeking Preliminary Injunctions in Trademark Cases

Ending years of uncertainty and division among district courts, the Ninth Circuit recently ruled that a trademark plaintiff must establish a likelihood of irreparable harm to obtain a preliminary injunction in a trademark case…more

Irreparable Harm, Preliminary Injunctions, Rebuttable Presumptions, Trademark Litigation, Trademarks

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Texas Renews Efforts to Require Cash Redemption of Certain Stored Value Cards

Texas renews effort to require that certain stored value cards be redeemable for cash if the balance on the card is less than $2.50. In early March, Texas House Bill 2391 was introduced. It would require a cash refund to…more

Gift-Cards, Pending Legislation, Refunds

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Banking Technology: Finding the Balance Between Cost-Effectiveness and Manageability

As the range of technology employed by the UK's leading banks widens, the balance between cost-effectiveness and manageability of solutions becomes increasingly difficult to strike. Mike Pierides (Partner) and Rich Jones…more

Banking Sector, Information Technology Outsourcing, Outsourcing, Technology, UK

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U.S. District Court Reaffirms Distressed Debt Funds Not Eligible Assignees under Loan Agreement

A recent decision by the U.S. District Court for the Western District of Washington found that certain distressed debt funds were not “financial institutions” under the definition of “Eligible Assignee” in the applicable loan…more

Assignments, Chapter 11, Commercial Bankruptcy, Loan Agreements, Loan Modifications

See All Updates »

The U.S. Supreme Court Upholds EPA’s Cross-State Air Pollution Rule in EPA v. EME Homer City Generation, L.P., Paving the Way to Further Use of Cap-and-Trade Programs to Control Emissions of SO2 and NOx from Electric Power Plants.

On April 24, the Supreme Court issued a 6-2 decision in EPA v. EME Homer City Generation, L.P., No. 12-1182, 572 U. S. ____, 2014 WL 1672044 (2014), upholding EPA’s latest version of a regional cap-and-trade program under the…more

Cap-and-Trade, Carbon Emissions, Clean Air Act, EPA v EME Homer City, NAAQS

See All Updates »

How to Fail in the Internet of Things

Innovation is prized in the growing space of the Internet of Things (IoT). But an innovative product design is not enough, and potential pitfalls abound. As demonstrated in a report published by the Federal Trade Commission…more

Data Collection, Data Protection, FTC, Internet, Internet of Things

See All Updates »

Ten Major Differences Between Real Estate Investing In China And Real Estate Investing In The United States

Commercial real estate is an approximately USD$26 trillion (RMB 162 Trillion) global industry, The United States has over 25% of the global commercial real estate at almost USD$7 Trillion. (RMB 43.7 Trillion). It has been…more

China, Commercial Real Estate Market, Foreign Investment, Popular, Real Estate Development

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California Reduces Additional Tax on Section 409A Noncompliance

On October 4, 2013, Governor Jerry Brown signed into law Assembly Bill (“AB”) 1173, which reduces from 20 percent to 5 percent the additional California tax on nonqualified deferred compensation that fails to comply with Section…more

Compliance, Deferred Compensation, Income Taxes, Section 409A

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Oil Regulation 2014 - United States

The US oil industry is divided into three sectors: upstream (exploration and production), midstream (processing, storage and transportation) and downstream (refining, distribution and marketing). Industry participants…more

BP, Chevron, ConocoPhillips, Exxon Mobil, Oil & Gas

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Don’t Trust, Verify: What Every Business Needs to Know About Certificates of Insurance

The general rule in New York is that a certificate of insurance (COI), by itself, does not provide insurance coverage. That means that businesses that rely solely on COIs as evidence of their status as additional insureds might…more

Additional Insured, Certificate of Insurance, Estoppel, Insurers

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Supreme Court Allows Changes to Agencies’ Interpretive Rules without the Notice-and-Comment Rulemaking Process

In March, the Supreme Court upheld an agency’s reversal of its own regulatory interpretation without requiring notice-and-comment rulemaking. Regulated entities now face considerable uncertainty in relying on agencies’…more

Administrative Procedure Act, Notice and Comment, Paralyzed Veterans Doctrine, Perez v Mortage Bankers Assoc, Rulemaking Process

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Oil and Water: Proposed Redefinition of Waters of the U.S. Has Significant Implications for Domestic Operations

The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (ACOE) have announced a new Nov. 14, 2014, deadline to submit comments to its much-debated redefinition of the term, “Waters of the United States,”…more

Environmental Policies, EPA, Jurisdiction, US Army Corps of Engineers, Water

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The USF Conundrum

The Federal Communications Commission (FCC) is considering whether to make fundamental changes to how carriers (and ultimately their customers) pay for federal programs that provide greater access to telecommunications and…more

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Supreme Court Ruling Heightens Pressure on Fiduciaries to Monitor 401(k) Plan Investments

On May 18th, the U.S. Supreme Court unanimously held in Tibble et al. v. Edison International et al., No. 13-550 (S. Ct. May 18, 2015) that ordinary principles of trust law impose on ERISA fiduciaries a duty to continually…more

401k, Benefit Plan Sponsors, ERISA, Fiduciary Duty, Popular

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The Legal Landscape Rapidly Changes for D.C. Employers

District of Columbia employers now face and are soon to face a number of new laws affecting a wide range of issues, including wage payments, recording of hours worked, pregnancy accommodations, concealed weapons in the…more

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Can Regulation A+ Succeed Where Regulation A Failed?

On March 25, 2014, the Securities and Exchange Commission (SEC) adopted final amendments to Regulation A under the Securities Act of 1933, or what is now being referred to as Regulation A+. While much of the existing framework…more

Amended Legislation, Capital Formation, JOBS Act, Regulation A, SEC

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Framework for Nuclear Agreement with Iran Announced—But Still a Long Way to Go

On April 2, 2015 representatives of the United States, Britain, France, Germany, China and Russia (collectively, the “P5+1” countries) announced that they had agreed with the Islamic Republic of Iran on the Parameters for a…more

Framework Agreement, Iran, Nuclear Power, P5+1 Nations, Sanctions

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Proposed U.S. Department of Transportation Passenger Protection Rules Offer Opportunity for Travel Industry Comments

On May 21, 2014, the U.S. Department of Transportation (DOT) proposed new passenger protection rules for the airline and travel industries, which would add to DOT’s extensive “Enhancing Airline Passenger Protections” regulations…more

Airlines,